Votaw & Hartshorn v. Diehl

62 Iowa 676

• Court: Supreme Court of Iowa
• Decided: January 30, 1883
• Status: Published

Opinions

Beck, J.

I. The plaintiffs allege that they are the abso - lute and unqualified owners of the property in question, a stock of general merchandise, which was seized by defendants upon certain attachments issued against one TI. M. Waite.

The answer shows the attachments upon which the goods were seized — all against Waite, and alleges that plaintiffs’ claim upon a pretended sale of the goods, which was made with the purpose of defrauding Waite’s creditors on the part ‘of plaintiffs and Waite, as well as of one Patterson, who was connected with the transaction.

The questions in the case upon which there arises any dispute involve the good faith of plaintiffs’ purchase of the goods. There is no controversy about the sale of the goods, their seizure by the plaintiffs upon the attachments, or upon other issues in the case not involving the good faith of the transaction.

We will consider the objections to the judgment in the order of their discussion in the argument, of defendants’ counsel.

II. Patterson testified that lie bargained for the goods, and, in order to make a payment, borrowed the money of 1. Binuoisaie: i'ace-mortgage m iact: evidence. plaintiffs. To secure them, lie caused Waite to execute a bill of sale to plaintiffs. This was done for the reason that Patterson had not then the possession of the goods. This evidence, so far as it shows that the bill of sale was intended as a security, was objected to by defendants, on the ground that it tended to contradict the bill of sale, which is absolute in its terms. We think the objection was correctly overruled. It is competent to show that a sale, absolute in its terms, is intended as security for a debt. This is always the case when rights under the sale are brought in question. The title of the goods under the bill of sale was involved in the action, and its true character should be established in order to determine the rights of the parties affected thereby.

III. The witness, Patterson, was asked upon his cross-examination by defendants, to state a conversation he had with 2. evidence: oiudingfcor-peaifprac-11" tice. one Humphrey, an attorney, who held for collec-lion a claim against Waite. The court sustained an objection to the question made by plaintiffs, This ruling is complained of by counsel for defendants. The abstract fails to show the facts sought to be elicited by the question. To enable us to determine whether the proposed evidence is competent, we should be advised of its character and the facts which defendants claimed would have been established by it. Jenks v. Knott’s Mexican Silver Mining Co., 58 Iowa, 549.

IV. Plaintiffs objected to evidence given by the witness Humphrey, of a conversation, wbicb be bad with tbe deputy T~IE SAME. sheriff about tbe time tbe goods were seized. Tbe objection was sustained. Tbe record does not disclose tbe conversation, nor tbe facts proposed to be established thereby. The ruling cannot be reviewed, for the. reasons given in tbe preceding point.

Y. Complaint is made that tbe circuit court erroneously 3 practice oouSTcrrors shownin record. excluded the evidence of one McKay, touching reports be bad from commercial men of "Waite’s financial condition. Tbe abstract does not show ^he rulings complained of, nor tbe offer to introduce tbe evidence of McKay, as claimed in the argument of counsel.

YI. Tbe refusal of the court to give to tbe jury certain instructions requested by defendants is complained of by defendants. . St?onSnot re-" quireci. These instructions direct tbe attention the j ury to facts and circumstances regarded by the jaw as badges of fraud. They also inform tbe jury that knowledge of fraud by plaintiffs, or of facts and circumstances casting suspicion upon tbe transaction, wbicb were sufficient to prompt a prudent man to inquiry that would have resulted in tbe discovery of fraud, if shown, defeats tbe sale. Tbe same rules were in substance announced in tbe instructions given to tbe jury.

YII. The instructions given to tbe jury are expressions of the law quite favorable to defendants. We discover no just ground of complaint against them. Their scope and character are indicated by what we have said in tbe preceding point.

YIII. Tbe evidence sufficiently supports tbe verdict. While it cannot be doubted that tbe sale was made under e. verdict: support: pratice in supreme court, very suspicious circumstances, wbicb tended to establish fraud on tbe part of all concerned, yet it . . . -was the peculiar province oí tbe jury to weigh these circumstances with other facts proved. We are not prepared to hold that tbe jury, in tbe exercise of their unbiased and intelligent discretion, could not have found for plaintiffs. This we would be required to do to authorize us to decide that their verdict should have been set aside by the court below.

We have considered all questions discussed by counsel. The judgments of the circuit court must be

Affirmed.